New Challenges to Secrecy That Protects Police Files

Protesters on Staten Island last month after a court hearing on whether grand jury records related to Eric Garner’s death should be released.Credit
Victor J. Blue for The New York Times

A case headed for a Staten Island courtroom on Thursday that seeks to unlock grand jury evidence in the police killing of Eric Garner is part of a national push to pry from law enforcement information long kept secret.

While journalists and civil libertarians have historically clamored for the release of details related to questionable police actions, the crisis of confidence in law enforcement that followed Mr. Garner’s death and the fatal police shooting of Michael Brown, an unarmed teenager, in Ferguson, Mo., has propelled the issue onto legislative and political agendas nationwide.

From Albany to Jefferson City, Mo., to Sacramento, elected officials and law enforcement leaders are increasingly confronting demands for police information and questions of transparency in the criminal justice system.

In Washington, Attorney General Eric H. Holder Jr. recently invoked the issue of transparency as a key element in restoring trust between the police and those they serve.

Gov. Andrew M. Cuomo of New York proposed last month that district attorneys release reports on grand jury proceedings in police killings when no indictment is returned — a striking departure from the traditional secrecy of the process.

Few states currently give the police more legal protection from scrutiny than New York, home to both the nation’s largest municipal police department and a news media that often thrusts New York City’s officers into the national spotlight. Much of that protection is tied to a 1976 state law that has been used to keep secret nearly every record dealing with individual officers.

In many jurisdictions, including New York State, simply determining the names of officers involved in fatal shootings can be a struggle. It took six days after Mr. Brown’s death for the authorities to name the officer, Darren Wilson, who shot him. The delay fed outrage and fueled conversations among police leaders who had typically favored secrecy.

About a month earlier, New York City police officials quickly revealed the name of the plainclothes officer, Daniel Pantaleo, whose chokehold contributed to Mr. Garner’s death last summer. But the disclosure was unusual and discretionary, and came after a video of the episode drew national attention.

The issue of access to police records has added a new dimension as officers across the country begin to wear body cameras and officials weigh whether the footage those cameras gather should be made public.

In New York City, the video that will soon be recorded by officers with body cameras could be kept from disclosure, even in shootings, by the 1976 law that already shields incident reports created after such shootings.

The law, section 50-a of the state’s civil-rights code, protects officers’ personnel records from public release, or from being cited in court, without judicial approval. Those records include instances in which an officer has been disciplined, meaning that in New York State, an officer’s wrongdoing on the job is shielded from public view by law.

By contrast, in at least 27 other states, police misconduct records are open to the public, according to a recent study of access to those records in all 50 states by the New York State Committee on Open Government.

Over time, the protection given to police officers has been extended to others, such as correction officers and professional firefighters. And the definition of a personnel record has expanded to cover almost any record that could be used to rate an officer’s job performance, said Robert J. Freeman, executive director of the open government committee.

“It took years, but now you have what essentially is the ‘blue wall of silence’ that has been codified by 50-a,” Mr. Freeman said. That, he said, means that what an officer does on the street can often be kept from the public.

“And it is,” he said.

Lawyers for the city have argued that the law covers records as varied as shooting reports and transcripts of open disciplinary hearings. “I would definitely say New York, and the N.Y.P.D., is especially bad when it comes to transparency,” said Adam Marshall, a legal fellow with the Reporters Committee for Freedom of the Press, in Washington.

Photo

Police Commissioner William J. Bratton has said that naming the main officer involved in Eric Garner’s death defused tensions.Credit
Yana Paskova for The New York Times

It was frustration with such secrecy in New York City — including over the Police Department’s stop-and-frisk policies — that led, in part, to the creation of a new inspector general, with subpoena power, for the police.

New York’s open government group wrote in its annual report to Mr. Cuomo that repealing or amending the obscure civil-rights code was its highest priority for the coming legislative session.

Transparency is needed, said Andrew Case, a former spokesman for the city’s Civilian Complaint Review Board, to add credibility to inquiries into the police.

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“ ‘Reform Civil Rights Law, section 50-a,’ may not fit as well on a sign as ‘Jail Killer Cops,’ but it’s more important to the integrity of the system,” said Mr. Case, who often had to keep details about officers and police incidents secret while at the agency, an oversight body for the Police Department.

The provision was a response to the creation of the state’s Freedom of Information Law in 1974. It grew, in part, out of a case in which three police officers from the Village of Johnson City were disciplined for doing an off-duty job while on duty. The village lost its bid to withhold the disciplinary findings against the officers, which included their names.

Two years later, the Legislature adopted the civil-rights provision as an exemption to the Freedom of Information Law. The stated goal was to keep defense lawyers from using past disciplinary cases to impugn an officer’s credibility in court. The effect has been to shield nearly all documents regarding individual officers from public view.

“It is something that they routinely assert,” said Christopher T. Dunn, associate legal director of the New York Civil Liberties Union, which has often tangled with city lawyers over the issue.

For years, news organizations, including The New York Times, have fought New York police agencies over disclosure of documents, mostly without success. The state’s highest court ruled against disclosure in a 1999 case in which The Daily Gazette of Schenectady and The Times Union of Albany sought the names and records of 18 officers punished for tossing eggs from a bus on the way to a bachelor party.

In the decision, Judge Howard A. Levine wrote that disclosure of the disciplinary records could have been used to “embarrass or humiliate the officers involved.”

A bill in Albany that would provide an avenue for disclosing an officer’s personnel records has repeatedly failed to come to a vote. Mr. Cuomo has not included changes to the law in his proposed criminal justice reforms.

Elsewhere, cracks are starting to show in what had been the default stance toward secrecy in departments around the country.

“Police chiefs are saying, listen, the world has changed,” said Chuck Wexler, president of the Police Executive Research Forum.

Departments that release officer names quickly after high-profile events, he said, face a second question: What is the officer’s history? “The public has a right to know this,” Mr. Wexler said.

Law enforcement agencies have recently been put on the defensive in court over the issue.

In New Jersey, a Superior Court judge last fall ruled that internal affairs complaints against corrections officers, including their names, could not be withheld under the state’s open public records act. In May, California’s highest court ruled that, barring a specific threat to officer safety, police departments must name officers involved in shootings.

In New York City, officers’ names have usually been withheld, after controversial actions. But in recent months, the department has been more forthcoming in some high-profile cases. The police commissioner, William J. Bratton, has said identifying Officer Pantaleo helped defuse tensions after Mr. Garner’s death. (The names of other officers at the scene, including supervisors, were not disclosed.)

Secrecy still prevails in most misconduct cases, including those handled by the city’s complaint board. Even transcripts from departmental trials — public hearings — are protected, the city has argued, citing the civil-rights law, as are final judgments against officers.

“I do think the public has a right to know,” said Richard D. Emery, chairman of the review board, “but that is a legislative decision.”

A version of this article appears in print on February 5, 2015, on Page A19 of the New York edition with the headline: New Challenges to Secrecy That Shields Police Files. Order Reprints|Today's Paper|Subscribe